Same-Sex Marriage Foes Vow To Take Proposition 8 Fight To US Supreme Court

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11:56 AM: A federal appeals court in San Francisco declined today to reconsider a ruling striking down Proposition 8, California’s ban on same-sex marriage.
The action by the 9th U.S. Circuit Court of Appeals means the next and final stop for the case is an appeal by the measure’s sponsors to the U.S. Supreme Court.

The voter initiative’s sponsors and their committee, Protect Marriage, vowed an immediate appeal.

“We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage,” attorney Andrew Pugno said.

“We have anticipated since the beginning that the case will ultimately be decided by the United States Supreme Court,” he said.

David Boies, a lawyer for two couples who challenged the voter-approved measure, said, “This is a great step forward to the day when everyone will be able to marry the person they love.”

Fellow attorney Theodore Olson predicted the Supreme Court will decide in October whether it will hear the case. If the court does take up the case, its decision would be expected by June 2013, he said.

“We are one step closer to a point at which this vestige of state-sponsored discrimination will be eliminated,” the attorney said.

In today’s order, the full 26-member appeals court turned down a bid by the sponsors to have an 11-judge panel review a decision in which a smaller panel ruled by a 2-1 vote in February that Proposition 8 is unconstitutional.

But the appeals court left Proposition 8 in effect during the appeal, until the Supreme Court makes a final decision on the case.

Proposition 8, stating that “only marriage between a man and a woman is recognized or valid in California,” was enacted by California voters as a state constitutional amendment in 2008.

In February, a majority of the three-judge 9th Circuit panel said the measure violated the federal Constitution’s 14th Amendment guarantee of equal treatment.

But the panel did not address the broad question of whether there is a constitutional right to same-sex marriage. Instead, it ruled on a narrow ground that would apply only to California’s situation.

It said that because same-sex marriage was legal in California for a period of several months in 2008, it was unfair to deprive gays and lesbians of a previously granted right to marriage without a legitimate justification.

Same-sex marriage was briefly legal in California, resulting in 18,000 gay and lesbian marriages, because the California Supreme Court ruled in May 2008 that the state Constitution provided such a right. But that decision was overturned by Proposition 8 in November of that year.

The review by an 11-judge federal appeals court panel, which is known as en banc review, is granted only for cases of exceptional importance.

Today’s 9th Circuit order did not show the numerical vote by the 26-member court on whether to grant review, nor did it indicate whether any judges had excused themselves from the vote. But it did note that four of the circuit judges favored reconsidering the case.

Three of those judges, in a dissent written by Judge Diarmuid O’Scannlain, said, “We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

In a response, Judge Stephen Reinhardt, the author of the February decision, wrote, “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

Reinhardt noted that, in keeping with the judicial practice of deciding constitutional cases narrowly when possible, the court did not decide whether all same-sex marriage bans are unconstitutional.

“That question may be decided in the near future, but if so, it should be in some other case, at some other time,” Reinhardt wrote.